Dash-cam video fails to clear air between cops, suspect

Police looking into use of force and suspect's alleged criminal actions

CASEY MCNERTHNE, Seattle Post-Intelligencer

By CASEY MCNERTHNEY, SEATTLEPI.COM STAFF

Published 8:15 pm, Tuesday, November 27, 2012

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case. Police have the Office of Professional Accountability reviewing the officer’s use of force, though investigators say Etherly was resisting arrest and was punched because he spit at officers. His attorney, who released the video, said Etherly did not intentionally spit at any officer and that his throat was swelling. He also said the officer did not de-escalate the situation properly nor did police release the video in a timely manner. Police say they complied with the public disclosure request and expedited it Nov. 27 because of increased public interest.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Photo: YouTube

A still frame from the dash-camera video of an Oct. 6 Seattle...

A still frame from the dash-camera video of an Oct. 6 Seattle police incident involving Leo Etherly, who is suspected in a hit-and-run case.

Dash-camera video from a case in which a criminal suspect is suing Seattle police was released to his attorney Tuesday afternoon – but both sides still disagree on what transpired.

The incident happened Oct. 6 after a woman bicyclist was hit by a van that fled the scene at 29th Avenue and East Jefferson Street. Officers said they saw the van pull into a parking lot in the 2300 block of East Union Street and the suspect begin walking away.

Video from the incident shows the man, Leo Etherly, not wanting to be touched by officers and refusing to give his name. Seattle Police Officer Eric Faust moves in to arrest Etherly and when the suspect doesn't put his hands behind his back, Faust puts his hands on Etherly's neck, then onto his chin.

"What are you choking me for?" Etherly asked as he appeared to be resisting.

Police, using the video to make their point, say the suspect was resisting arrest and clearly intended to spit on officers to continue his aggression. It was only after being hit by spit spray that the main officer trying to make the arrest struck him, police said. Prosecutors initially called the spit a misdemeanor assault.

Etherly has said he didn't recall spitting, and his attorney, James Egan, said that when the officer put his hands on Etherly's throat it caused his throat to swell, that his mouth also was covered, and that Etherly's breathing was hindered by his own saliva.

"This might be the kind of reaction that somebody gets when they're waterboarded," Egan said.

"He did not intentionally spit on the officers," Egan said. "You'll notice he actually spit in a direction that wasn't right at the officers, kind of between two. He apologizes for if he happened to accidentally spit on the officers after being choked and before being struck in the face."

Etherly was charged Oct. 8 with misdemeanor hit-and-run and misdemeanor assault in Seattle Municipal Court. But the detective in charge of investigating the case wanted the spit considered for a felony charge, so the misdemeanor charge was dismissed Oct. 22. King County prosecutors, who handle felony cases and not misdemeanors, declined to file such a case.

It is now being reviewed by the City Attorney's Office for possible re-filing of the misdemeanor charges.

"No one wants to use force any time during any contact," Seattle Police spokesman Sgt. Sean Whitcomb told a room of reporters Tuesday. "Wouldn't have this have been better if we had just made contact with this man and he left his hands on the car and when they said this is probable cause for an arrest ... (he) puts his hands behind his back like he was asked and is cuffed up and processed and then goes through the criminal justice where he actually has representation and he gets to do that?

"Most contacts actually go that way."

Etherly's attorney said the hit-and-run is "kind of a non-issue," and said the bigger problem is the use of force that concluded the incident. He also alleged that police had been trying to hide the dash-cam video prior to Tuesday by not responding to a public disclosure request.

Whitcomb said the department receives about 4,000 public disclosure requests annually and that the video was not initially released only because it was part of an ongoing criminal case, which exempts it. He said the video was released to Egan by the city through discovery and was released by the department Tuesday after the public disclosure request was expedited because of widespread public interest.

Egan said a major problem with the incident is that police did not de-escalate the situation. Last year a Department of Justice investigation found that Seattle police had engaged in a pattern or practice of excessive force. DOJ investigators found that a small group of officers accounted for a disproportionately large percentage of use-of-force incidents.

Egan said he isn't a use-of-force expert, but believed the three officers addressing Etherly should have stepped back if Etherly was resisting and found a way to better address and de-escalate the scene.

"He's not armed, that is not a lit cigarette," Egan said of what Etherly was holding, which Whitcomb said was lit. "I think you can see the bias that prevails here."

Police say the use of force was properly documented and the captain who reviewed the incident immediately alerted the Office of Professional Accountability, which investigates use-of-force complaints. Click here to read a portion of the report, which was redacted by police.

Whitcomb, the police spokesman, said there are three things authorities are still looking into: Officer Faust's use of force, and the alleged hit-and-run and alleged spit assault on police by Etherly.

"Spitting on someone is dangerous," Whitcomb said. "It could be harmful because of any pathogens that might be there. We don't know anyone's health history when we're dealing with them. But ultimately you may as well punch someone if you spit on them. The idea is it's assaultive behavior to officers who are doing their job."

Click above to watch the incident video released to Etherly's attorney. The full video is posted after the still images.